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2002 DIGILAW 451 (AP)

Makkena Subba Naidu v. State Of A. P.

2002-03-21

body2002
T. SURYA RAO, J. ( 1 ) THE revision petitioner assails the order dated 12-04-2001 passed by the learned sessions Judge, Guntur,in Criminal Revision petitionno. 84 of 2000. The revision petitioner is the third respondent therein. ( 2 ) UNDER the impugned order, the learned sessions Judge directed M. Os. 2 to 4 marked in C. C. No. 187 of 1986, namely, cash of rs. 30,000/- to be returned to the revision petitioner therein, who is the second respondent herein. ( 3 ) THE factual matrix may be set forth at the out set herein below thus: the revision petitioner as well as the second respondentherein are the third parties to the criminal case in C. C. No. 187 of 1986. The Station House Officer, Prathipadu, laid the charge-sheet against the third respondent herein for the offences punishable under sections 408 and 409 of the Indian Penal code alleging, inter,alia, that the accused- attluri Gopala Rao was working as Clerk in chetana Enterprises, which was doing business in tobacco. The said company was getting its tobacco graded in Sri Sai Krishna tobacco Company of Kopparru. In connection therewith, it deputed the accused- gopala Rao for getting the tobacco graded. But the said Gopala Rao developed an evil intention of misappropriating the said tobacco. Pursuant thereto, he got 75 bundles of tobacco weighing about 5,400 Kgs. unloaded at the shop of the revision petitioner and received a cash of Rs. 30,000/ -. Having found shortage of tobacco, the Company through its Managing Director by name R. Koti Sudhakar lodged a report with the Police against the accused. During the course of investigation, the accused was arrested and pursuant to the confession leading to discovery, an amount of Rs. 30,000/- was recovered from his house and the tobacco bundles were recovered from the business premises of the revision petitioner. ( 4 ) AT the trial, the defence taken up by the accused was total denial. The revision petitioner was examined as one of the witnesses to prove the recovery. During the course of the trial, as aforesaid, the cash of rs. 30,000/- was marked as M. Os. 2 to 4. At the culmination of the trial, while acquitting the accused the learned Magistrate directed m. Os. 2 to 4 to be returned to the accused. The revision petitioner was examined as one of the witnesses to prove the recovery. During the course of the trial, as aforesaid, the cash of rs. 30,000/- was marked as M. Os. 2 to 4. At the culmination of the trial, while acquitting the accused the learned Magistrate directed m. Os. 2 to 4 to be returned to the accused. Having been aggrieved by the said disposal order of the property, the wife of the accused- the second respondent herein and the revision petitioner filed two Criminal appeals in Crl. A. No. 171/93 and Crl. A. No. 170/93 respectively. The learned i Additional Sessions Judge, Guntur, by his order dated 31-07-1996 allowed both the appeals and remitted the matter back to vi Additional Munsif Magistrate, Guntur, for fresh enquiry and to consider the rival claims made by both the appellants. After the remand, during the course of enquiry the second respondent herein-Lalithakumari was examined as P. W. 1 besides examining another witness in support of her claim. The present revision petitioner examined himself as R. W. 1 and filed Exs, D-1 and D-2, Mahajars dated 07-07-1986. After the conclusion of the enquiry, the learned VI Additional Munsif magistrate, Guntur, directed the return of the cash of Rs. 30,000/- to the revision petitioner. Assailing the said order, the said lalithakumari preferred a Criminal Revision petition before the Sessions Court. Under the impugned order, the learned Sessions Judge allowed the said Revision Petition while upsetting the order of the Magistrate and directed the return of cash to the said lalithakumari. ( 5 ) THE present Criminal Revision Case can be disposed of on the ground of maintainability of the Criminal Revision petition before the Sessions Court. Obviously, the Revision Petition filed by the said lalithakumari in Crl. R. P. No. 84 of 2000 is not maintainable. The reason is not far to seek. The property disposal order passed in c. C. No. 187 of 1986 at the culmination of the trial was obviously an order passed under section 452 of the Code of Criminal Procedure ( the Code for brevity ). Any order passed under Section 452 of the Code is an appealable order in accordance with Section 454 of the code, That is the reason why, initially appeals were filed as against the disposal order passed in criminal case in Crl. A. No. 170/93 and crl. A. No. 171/93. Any order passed under Section 452 of the Code is an appealable order in accordance with Section 454 of the code, That is the reason why, initially appeals were filed as against the disposal order passed in criminal case in Crl. A. No. 170/93 and crl. A. No. 171/93. When those appeals were allowed and the matter was remanded for fresh enquiry, the consequential order passed would again be only an appealable order but not a revisable order. Surprisingly, as against the orders passed by the learned Magistrate after remand, Criminal Revision Petition no. 84 of 2000 was filed. Therefore, crl. R. P. No. 84 of 2000 is not maintainable. The impugned order dated 12-04-2001 passed in the said Revision Petition in that view of the matter is unsustainable and is liable to be set aside. ( 6 ) THE revision petitioner claims the property on the premise that the accused in criminal case having delivered 75 bundles of tobacco received from him an amount of rs. 30,000/- as the sale price thereof. Now that the Police seized the said amount of rs. 30,000/-pursuant to the confession made by the accused during the course of investigation and also 75 bundles of tobacco from him, he claimed the return of the said amount as his amount. On the other hand, the second respondent herein claims the said amount as her amount inasmuch as the said amount has been seized from the house of the accused. The second respondent herein is no other than the wife of the accused in the criminal case. Inasmuch as the prosecution failed to establish its case and as the cash was obviously seized from the house of the accused and further at the time of the seizure of the cash the wife of the accused claimed the amount as her amount, the learned sessions Judge havingbeen swayed away by those facts directed the cash to be returned to the wife of the accused. ( 7 ) IN his order, inter alia, the learned magistrate was of the view that in vie w of the recitals in Ex. ( 7 ) IN his order, inter alia, the learned magistrate was of the view that in vie w of the recitals in Ex. D-l, the amount belonged to the revision petitioner herein and the said amount was paid at the house of the revision petitioner to the accused; and that the revision petitioner was able to give denominations of the cash paid by him to the accused whereas the wife of the accused failed to give at least denominations of the cash seized by the police; and that, therefore, her claim was only at the instance of her husband-accused. I see no plausible grounds given by the learned Sessions Judge so as to upset the said finding. Anyway, the property disposal order passed under Section 452 of the Code is not a final order inasmuch as it is not within the realm of the Criminal Court to decide the rights of the parties. At that stage, the criminal Court is mainly concerned with right to possession of the property but not right over the property. The rights over the property can only be adjudicated by a competent Civil Court having jurisdiction over the same. It is always open to the parties to assail the said order in a competent Civil court or file a suit to claim the right over the property. Therefore, always and in all circumstances while directing the property to be given possession of to a particular person, it shall be the endeavour of the criminal Court to observe that such a right is subject to the result of the decision of a competent Civil Court having jurisdiction over the matter. Any attempt in that view of the matter to decide the rights over the properties marked in a criminal case is, therefore, without jurisdiction and competence of the Criminal Court. ( 8 ) THIS order will not prevent the parties from pursuing their remedies either before the Criminal Court by filing an appeal or pursuing their rights before a competent civil Court. ( 9 ) FOR the foregoing reasons, the Criminal revision Case is allowed and the impugned order is hereby set aside.